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Argument  of  Roger  S.  Baldwin,  of  New  Ha^ 


ven,  before  the  Supreme  Court  [re] 


Cinque,  &  others,  of  the  Amistad.1841 


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ARGUMENT 


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ROGER  S;  BALDWIN, 

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OF  NEW  HAVEN, 


BEFORE  THE 


SUPREME  COURT  OF  THE  UNITED  STATES, 


IN  THE  CASE  OF  THE 

UNITED  STATES,  APPELLANTS, 


vs. 


CINQUE,  AND  OTHERS,  AFRICANS  OF  THE  AMISTAD. 


NEW  YORK: 

S.  W.  BENEDICT,  128  FULTON  STREET* 


184L 


y  -L9&JZO  J.S-o  1  Te'21  Re“ 


3ZG-3V3 

B  13a. 


ARGUMENT  OF  R.  S.  BALDWIN, 


BEFORE  THE 


SUPREME  COURT  OF  THE  UNITED  STATES. 


m 

May  it  please  your  Honors, — 

In  preparing  to  address  this  honorable  Court  on  the  questions 
arising  upon  this  record,  in  behalf  of  the  humble  Africans  whom  I 
represent, — contending,  as  they  are,  for  freedom  and  for  life,  with  two 
powerful  governments  arrayed  against  them, — it  has  been  to  me  a 
source  of  high  gratification,  in  this  unequal  contest,  that  those  questions 
will  be  heard  and  decided  by  a  tribunal,  not  only  elevated  far  above 
the  influence  of  Executive  power  and  popular  prejudice,  but  from  its 
very  constitution  exempt  from  liability  to  those  imputations  to  which  a 
Court,  less  happily  constituted,  or  composed  only  of  members  from  one 
section  of  the  Union,  might,  however  unjustly,  be  exposed. 

In  a  case  like  this,  involving  the  destiny  of  thirty-six  human  beings, 
cast  by  Providence  on  our  shores,  under  circumstances  peculiarly  fitted 
to  excite  the  sympathies  of  all  to  whom  their  history  has  become  accu¬ 
rately  known,  it  is  much  to  be  regretted  that  attempts  should  have  been 
made  in  the  official  paper  of  the  Government,  on  the  eve  of  the  trial 
before  this  Court  of  dernier  resort,  to  disturb  the  course  of  justice,  not 
only  by  passionate  appeals  to  local  prejudices,  and  supposed  sectional  in¬ 
terests,  but  by  fierce  and  groundless  denunciation  of  the  honorable  Judge 
before  whom  the  cause  was  originally  tried,  in  the  Court  below :  and, 
as  if  this  were  not  enough,  that  two  miserable  articles  from  a  Spanish 
newspaper,  denouncing  these  helpless  victims  of  piracy  and  fraud,  as 
murderers,  and  monsters  in  human  form,  should  have  been  transmitted 
by  the  minister  of  Spain  to  the  Department  of  State,  and  published  in 


A 


4 


an  Executive  communication  to  the  Senate,  on  the  very  day  on  which 
the  hearing  commenced  in  this  honorable  Court. 

I  do  not  allude  to  these  improprieties  from  any  apprehension  of  their 
influence  here,  but  because  I  feel  it  to  be  a  duty  thus  publicly  to  repro¬ 
bate  a  course  of  proceeding,  the  obvious  tendency  of  which  is  to  excite 
jealousy  and  distrust,  and  thereby  to  impair  the  just  confidence  with 
which  an  unprejudiced  community  have  ever  regarded  the  judgments  of 
this  high  tribunal. 

This  case  is  not  only  one  of  deep  interest  in  itself,  as  affecting  the 
destiny  of  the  unfortunate  Africans  whom  I  represent,  but  it  involves 
considerations  deeply  affecting  our  national  character  in  the  eyes  of  the 
whole  civilized  world,  as  well  as  questions  of  power  on  the  part  of  the 
government  of  the  United  States,  which  are  regarded  with  anxiety  and 
alarm  by  a  large  portion  of  our  citizens.  It  presents,  for  the  first  time, 
the  question  whether  that  government,  which  was  established  for  the 
promotion  of  justice,  which  was  founded  on  the  great  principles  of  the 
Revolution,  as  proclaimed  in  the  Declaration  of  Independence,  can,  con¬ 
sistently  "with  the  genius  of  our  institutions,  become  a  party  to  proceed¬ 
ings  for  the  enslavement  of  human  beings  cast  upon  our  shores,  and 
found  in  the  condition  of  freemen  within  the  territorial  limits  of  a  free 
AND  SOVEREIGN  STATE  1 

In  the  remarks  I  shall  have  occasion  to  make,  it  will  be  my  design  to 
appeal  to  no  sectional  prejudices,  and  to  assume  no  positions  in  which  I 
shall  not  hope  to  be  sustained  by  intelligent  minds  from  the  South  as 
well  as  from  the  North.  Although  I  am  in  favor  ot  the  broadest 
liberty  of  inquiry  and  discussion, — happily  secured  by  our  Constitution 
to  every  citizen,  subject  only  to  his  individual  responsibility  to  the  laws 
for  its  abuse, — I  have  ever  been  of  the  opinion  that  the  exercise  of  that 
liberty  by  citizens  of  one  State  in  regard  to  the  institutions  of  another 
should  always  be  guided  by  discretion,  and  tempered  with  kindness. 

The  facts  on  which  the  counsel  for  the  appellees  move  to  dismiss  this 
appeal  as  they  appear  on  the  record,  or  are  averred  in  their  motion  and 
not  denied,  are  these  : — 

The  schooner  Amistad,  on  the  26th  of  August,  1839,  arrived  in  Long 
Island  Sound,  in  the  possession  of  the  appellees,  and  was  anchored  about 
half  a  mile  from  the  northerly  shore  of  Long  Island,  near  Culloden  Point. 

She  had  sailed  from  Havana  on  the  28th  of  June,  bound  to  Guanaja^ 
under  the  command  of  her  then  owner,  Raymon  Ferrer,  having  on 
board,  as  passengers,  two  Spaniards,  Jose  Ruiz  and  Pedro  Montez,  and 
fifty-four  u  native  Africans/’  admitted  to  have  been  “  recently  import- 


9 

» 


! 


»  » 


a 


ed  from  Africa,”  of  whom  the  appellees  are  a  part.  They  were  put  on 
board  the  schooner  on  the  night  previous  to  her  sailing,  by  Ruiz  and 
Montez  respectively,  as  their  slaves  ;  under  color,  (with  the  exception 
of  the  boy  Kali,)  of  two  custom-house  permits,  authorizing  certain 
Ladinos ,  described  only  by  Spanish  names,  and  said  to  belong  to  them 
respectively,  to  go  by  sea  to  Puerto  Principe.  When  the  schooner  ar¬ 
rived  in  Long  Island  Sound,  none  of  her  original  crew,  except  Antonio, 
the  slave  of  Captain  Ferrer,  were  on  board.  She  had  no  flag  flying  to 
denote  her  national  character  or  former  ownership.  The  captain  and 
cook  had  been  killed  soon  after  she  sailed  from  Havana,  by  some  of  the 
Africans  in  their  efforts  to  recover  their  liberty ;  and  the  rest  of  the 
crew  had  abandoned  the  schooner  in  the  boat.  From  that  time,  the 
schooner  and  the  two  Spanish  passengers,  and  the  boy  Antonio, 
were  under  the  control  of  the  Africans,  who  were  themselves,  de  facto , 
free. 

Most  of  them  had  been  on  shore,  within  the  territorial  limits  of 
the  State  of  New  York,  whose  laws  prohibit  slavery,  and  a  part  of 
them  were  then  on  shore  in  communication  with  the  inhabitants,  on 
whose  protection  they  had  thrown  themselves,  when  the  schooner  was 
boarded  by  an  officer  and  boat’s  crew  of  the  United  States  brig 
Washington,  and  the  Africans  on  board,  as  well  as  those  on  shore,  were, 
at  the  instance  of  the  two  Spaniards,  who  claimed  them  as  their  slaves, 
seized  by  the  order  of  Lieutenant  Gedney,  a  naval  officer  in  the  service 
of  the  United  States  ;  forcibly  withdrawn  from  the  territorial  jurisdic¬ 
tion  of  the  State  in  which  they  were  found,  and  brought,  with  the 
schooner  of  which  they  were  in  possession,  into  the  District  of  Connec¬ 
ticut.  The  Africans  were  ignorant  of  any  language  but  that  of  their 
nativity,  and  were  known  by  Ruiz  and  Montez  to  have  been  recently 
imported  from  Africa. 

In  May,  1818,  the  Spanish  government,  by  its  minister,  Don  Onis, 
communicated  to  the  government  of  the  United  States  the  treaty  be¬ 
tween  Great  Britain  and  Spain,  bearing  date  the  23d  of  September, 
1817,  for  the  abolition  of  the  slave-trade,  and  the  ordinance  of  the  King 
of  Spain,  issued  in  pursuance  thereof,  of  the  date  of  December,  1817, 
prohibiting  the  traffic,  and  directing  that  its  victims  shall  be  declared 
free,  in  the  first  port  in  his  dominions  at  which  they  shall  arrive.  In 
February,  1819,  the  treaty  between  Spain  and  the  United  States  was 
revised  at  Washington,  after  a  protracted  negotiation  between  Mr. 
Adams,  then  Secretary  of  State,  and  the  Spanish  minister,  Don  Onis. 

On  the  arrival  of  the  schooner  at  New  London,  on  the  29th  of  Au- 


t> 


gust,  1839,  before  the  intervention  of  the  Spanish  minister  at  Washing¬ 
ton,  the  Africans  were  placed  in  the  custody  of  the  law,  under  process 
of  the  District  Court  of  the  United  States,  as  a  Court  of  Admiralty, 
against  them  as.  property,  on  the  libel  of  Lieutenant  Gedney  and  his 
officers  for  salvage. 

On  the  6th  of  September,  1839,  the  Spanish  minister  wrote  to  the 
Secretary  of  State,  demanding  that  the  schooner  and  her  cargo ,  be  de¬ 
livered  to  the  owner  without  salvage  ;  and  that  “  the  negroes”  (whom 
he  represented  to  belong  to  Ruiz  and  Montez,)  “  be  conveyed  to  Ha¬ 
vana,  or  be  placed  at  the  disposal  of  the  proper  authorities  in  that  part 
of  her  Majesty’s  dominions,  in  order  to  their  being  tried  by  the  Spanish 
laws  which  they  have  violated ;  and  that  in  the  mean  time  they  be 
kept  in  safe  custody  in  order  to  prevent  their  evasion.” 

Subsequently  to  this  requisition  by  the  Spanish  minister,  viz.,  on  the 
18th  of  September,  1839,  Jose  Ruiz  and  Pedro  Montez,  respectively, 
filed  their  libels  in  the  District  Court,  and  prayed  process  of  attachment 
against  the  Africans  as  their  property,  averring  that  they  were  within 
the  jurisdiction  of  the  court,  and  insisting  that  they  “  ought,  by  the  laws 
and  usages  of  nations  and  of  the  United  States,  and  according  to  the 
treaties  between  Spain  and  the  United  States,  to  be  restored  to  them, 
without  diminution  and  entire.”  The  process  of  the  court  was  issued 
according  to  their  request,  and  the  appellees  were  again  taken  into  cus¬ 
tody  thereon  as  property.  Claims  were,  at  the  same  time,  filed  by  Ruiz 
and  Montez,  respectively,  in  answer  to  the  libel  of  Lieutenant  Gedney 
for  salvage. 

After  the  parties  in  interest  were  thus  before  the  court,  the  District 
Attorney  of  the  United  States  on  the  19th  of  September,  filed  a  sug¬ 
gestion  that  the  Spanish  minister  had  presented  to  the  government  of 
the  United  States  a  claim,  that  the  appellees  are  the  property  of  Span¬ 
ish  subjects,  and  that  they  arrived  within  the  jurisdictional  limits,  and 
were  taken  possession  of  by  a  public  armed  vessel,  of  the  United  States, 
under  such  circumstances  as  to  make  it  the  duty  of  the  Government  to 
cause  them  “  to  be  restored  to  the  true  proprietors  and  owners  thereof, 
as  required  by  the  treaty  subsisting  between  the  United  States  and  Spain.” 

And  therefore  the  District  Attorney,  in  behalf  of  the  United  States, 
prays  the  Court,  on  its  being  made  legally  to  appear  that  the  claim  of 
the  Spanish  minister  is  well  founded  and  conformable  to  the  Treaty, 
to  make  such  order  as  may  best  enable  the  United  States  to  comply 
with  their  Treaty  stipulation ;  but  if  it  should  appear  that  the  negroes 
were  transported  from  Africa,  and  brought  within  the  Lnited  States, 


Contrary  to  the  laws  of  the  United  States,  that  the  Court  will  make 
such  order  as  will  enable  the  President  to  send  them  to  Africa  pursuant 
to  the  act  of  Congress  in  such  case  provided. 

On  the  19th  of  November,  the  District  Attorney  filed  another  sug¬ 
gestion  similar  to  the  first,  omitting  only  the  alternative  prayer ;  and  on 
each  of  these  suggestions,  a  warrant  of  seizure  was  issued  by  the  Court, 
and  the  Africans  were  again  taken  into  custody  thereon. 

To  these  several  libels,  claims,  and  suggestions,  the  Africans,  who, 
when  seized,  were  in  the  condition  of  freemen,  capable  of  having  and 
enforcing  rights  of  their  own,  severally  answered  :  that  they  were  born 
free,' — and  were  kidnapped  in  their  native  country,  and  forcibly  and 
unlawfully  transported  to  Cuba; — that  they  were  wrongfully  and 
fraudulently  put  on  board  of  the  Schooner  Amistad  by  Ruiz  and  Montez, 
under  color  of  permits,  fraudulently  obtained  and  used ;  that  after 
achieving  their  own  deliverance  they  sought  an  asylum  in  the  State  of 
New  York,  by  the  laws  of  which  they  were  free  ;  and  that  while  there, 
they  were  illegally  seized  by  Lieutenant  Gedney,  and  brought  into  the 
District  of  Connecticut. 

The  District  Court  found  these  allegations  in  substance  to  be  true, 
and  therefore  dismissed  Lieutenant  Gedney’s  libel  for  salvage  on  the 
Africans ;  and  also  dismissed  the  libels  of  Ruiz  and  Montez,  and  the 
suggestion  or  claim  made  by  the  United  States  on  their  behalf ;  but  in 
accordance  with  the  alternative  prayer  by  the  District  Attorney  in  be¬ 
half  of  the  United  States,  decreed  that  the  Africans  should  be  delivered 
to  the  Executive  to  be  sent  back  to  Africa. 

From  the  finding  and  decree  of  the  District  Court,  neither  Ruiz  nor 
Montez,  nor  Gedney  have  appealed.  They  voluntarily  sought,  by  their 
libels,  the  action  of  the  Court,  and  submitted  to  the  decision  against  them. 
They  might  have  appealed,  but  chose  not  to  avail  themselves  of  the 
privilege. 

The  Spanish  minister  never  made  himself  a  party  to  the  proceedings 
in  the  Court,  either  as  the  Representative  of  the  Government,  or  of  the 
subjects  of  Spain.  It  is  true,  the  decree  of  the  District  Court  speaks  of 
“  the  claim  of  the  minister  of  Spain  which  demands  the  surrender  of 
Cinque  and  others,” — as  if  it  were  a  claim  made  by  him  in  Court , 
and  dismisses  it.  It  also  speaks  of  the  claims  of  Ruiz  and  Montez  as 
being  “  included  under  the  claim  of  the  minister  of  Spain,”  and  dis¬ 
misses  them  also. 

But  the  Record  shows  that  no  appearance  or  claim  was  ever  made  in 
Court,  by  the  Spanish  minister ;  and  it  appears  by  the  correspondence 
transmitted  to  the  House  of  Representatives,  (Doc.  185,  26  Cong.  p.  6, 


s 


7,  8,)  that  his  demand  on  the  Executive  tor  the  surrender  of  the  Africans 
as  criminals ,  was  made  on  the  6th  of  September,  1839,  several  days* 
anterior  to  the  filing  of  the  libels  of  Ruiz  and  Montez  in  the  District 
Court  against  them  as  property.  Of  course  their  libels  and  claims  could 
not  have  been  included  in  any  claim  of  the  Spanish  minister,  on  which 
the  Court  was  called  to  decide.  Indeed  the  Spanish  minister  would 
have  had  no  right  to  appear  in  the  Court  of  Admiralty  as  the  represen¬ 
tative  of  Spanish  claimants  of  property,  who  were  personally  in  Court 
pursuing  their  claims  for  themselves.  See  1  Mason,  14  ;  10  Wheat.  66. 
And  so  far  was  he  from  actually  appearing,  or  desiring  to  appear  as  a 
suitor  in  the  Court,  that  he  has  continued  to  the  present  time  to  protest 
against  the  exercise  of  jurisdiction  by  any  of  the  tribunals  of  the  United 
States  over  the  subject  matter  in  controversy.  Cong.  Doc.  185,  p.  21. 
H,  R.  1840,  and  Sen.  Doc.  179,  1841,  p.  6.  He  has  neither  taken, 
himself,  an  appeal  from  the  decree  of  the  Court,  nor  has  he  authorized 
an  appeal  to  be  taken  by  the  United  States  in  his  behalf.  The  Govern¬ 
ment  of  the  United  States,  therefore,  are  acting  in  these  proceedings  as 
volunteers ,  having  no  interest  of  their  own,  and  no  authority  to  repre¬ 
sent  or  affect  the  rights  of  others.  And  yet,  singular  as  it  may  seem, 
the  only  appeal  which  has  been  taken  from  the  decree  of  the  Court 
below  is  the  appeal  of  the  United  States  in  the  following  words :  “And 
after  the  said  decree  is  pronounced  the  said  United  States,  claiming  as 
aforesaid  in  pursuance  of  a  demand  made  upon  them  by  the  minister 
of  her  Catholic  Majesty  the  Queen  of  Spain,  to  the  United  States,  move 
an  appeal,  &c.” 

The  Counsel  for  the  Africans  move  the  Court  to  dismiss  this  appeal, 
on  the  ground  that  the  Executive  Government  of  the  United  States  had 
no  right  to  become  a  party  to  the  proceedings  against  them  as  property , 
in  the  District  Court,  or  to  appeal  from  its  decree. 

1st.  It  was  an  unauthorized  interference  of  the  Executive  with  the 
appropriate  duties  of  the  Judiciary. 

By  the  constitution  of  the  United  States  the  sovereignty,  originally  in 
the  people,  was  confided  by  them,  so  far  as  was  deemed  necessary  for 
the  purposes  of  a  National  Government,  to  three  separate  departments ; 
each  in  the  exercise  of  its  legitimate  powers,  sovereign  and  independent 
of  the  other.  And,  it  was  long  since  remarked  by  an  eminent  jurist, 
that  when  either  branch  of  the  government  usurps  that  part  of  the  so¬ 
vereignty  which  the  constitution  assigns  to  the  other  branch,  liberty 
ends,  and  tyranny  begins.  The  constitution  designates  the  portion  of 
sovereignty  to  be  exercised  bv  the  judicial  department,  and  among 


9 


other  attributes  devolves  upon  it  the  cognizance  of  “  all  cases  in  law 
or  equity  arising  under  the  constitution,  the  laws  of  the  United  States, 
and  treaties  made  or  which  shall  be  made  under  their  authority,”  and 
“  all  cases  of  admiralty  and  maritime  jurisdiction ;”  and  renders  it  so¬ 
vereign,  as  to  determinations  upon  property,  whenever  that  property  is 
within  its  reach.  See  3  Dali.  12,  13  ;  Bee’s  Adm.  278. 

The  Africans  of  the  Amistad  who,  when  found  by  Lt.  Gedney,  were 
de  facto  free,  and  in  part  at  least  within  the  territorial  limits  of  a  free 
state,  were  seized  by  him,  at  the  instance  of  Ruiz  and  Montez,  as  their 
property.  They  were  libelled  with  the  vessel  and  cargo,  as  property , 
for  salvage,  and  were  taken  into  the  custody  of  the  law,  under  a  war¬ 
rant  of  seizure  from  the  District  Court.  If  they  were  in  fact  property, 
and  liable  to  be  treated  as  such,  by  any  department  of  the  Government 
of  the  United  States,  they  were  then  in  the  custody  of  a  judicial  tri¬ 
bunal,  competent  to  award  and  restore  the  possession  to  the  true  pro¬ 
prietor,  whenever  his  title  should  be  proved.  A  “  case”  had  arisen  in 
which  the  question  of  freedom  or  property,  which  lies  at  the  foundation 
of  all  jurisdiction  over  the  Africans,  was  involved  ;  and  in  which,  if  the 
Court  had  jurisdiction  over  them  as  property ,  its  power  was  necessarily 
sovereign  and  exclusive.  See  3  Dali.  13;  7  Wheaton,  284-310  ; 
Bee’s  Adm.  Rep.  278,  9. 

If,  under  any  circumstances,  it  would  have  been  competent  for  the 
Executive,  on  a  demand  by  the  Spanish  minister,  to  investigate  the 
facts,  and  decide  on  conflicting  claims  to  property  in  the  custody  of  a 
public  officer,  claimed  by  foreign  subjects  under  a  treaty,  (which  may 
well  be  doubted,  see  Wheaton’s  El.  289  ;  7  Wheaton’s  Rep.  284,  310,) 
it  seems  very  clear  that  the  Spanish  claimants  were  at  liberty,  if  they 
preferred  it,  to  avail  themselves  of  the  stipulation  in  the  treaty,  and 
seek  their  remedy  by  an  application  to  the  court.  For  it  is  expressly 
provided  by  the  20th  article  of  the  Treaty  with  Spain :  “  that  the  in¬ 
habitants  of  the  territories  of  each  party  shall  have  free  access  to  the 
Courts  of  Justice  of  the  other,  and  shall  be  permitted  to  prosecute  suits 
for  the  recovery  of  their  properties,  &c.,  whether  the  persons  whom 
they  may  sue  be  citizens  of  the  country  in  which  they  may  be  found, 
or  any  persons  who  may  have  taken  refuge  therein.” 

And  it  seems  equally  clear  that  after  property  in  controversy  has  been 
placed  in  custody  of  the  law  by  process  in  rem ,  and  the  claimants  have 
filed  their  libels,  and  voluntarily  submitted  to  the  jurisdiction  of  the 
Court,  the  rights  of  the  litigating  parties  must  be  decided  by  the  judicial 
and  not  by  the  executive  power.  2  Mason,  436,463;  7  Wheat.  310, 

2 


10 


11,  Tazewell  arg. ;  Bee’s  Rep.  n.  277,  8  ;  Const.  Art.  3.  §  3.  See  also, 
Mr.  Forsyth’s  letters  to  the  Spanish  Minister,  Dec.  12,  1839  ;  Doc. 
185,  H.  R.  1840,  p.  27  ;  Senate  Doc.  179,  1841,  p.  12,  29.  See  also, 
Chief  Justice  Taney’s  opinion,  when  Attorney  General,  Aug.  4,  1831 ; 
Doc.  199,  H.  R.  1840,  p.  70. 

So  far  as  the  Africans  were  concerned,  all  the  parties  in  interest  were 
before  the  Court,  when  the  United  States  intervened  with  their  claim  or 
suggestion  ;  for  it  is  not  pretended  that  the  Africans,  if  they  were  pro¬ 
perty,  belonged  to  any  other  Spanish  subjects  than  Ruiz  and  Montez. 
If  it  was  the  duty  of  the  United  States,  by  reason  of  any  provision  in  the 
treaty,  to  deliver  the  Africans  as  property  to  their  Spanish  claimants,  it 
was  a  duty  which  the  Court  was  obliged  by  the  treaty  to  perform,  after 
the  property  was  placed  in  its  custody,  at  the  suit  of  the  claimants,  if 
they  succeeded  in  establishing  their  title.  There  was  no  necessity  for 
the  intervention  of  the  Executive  to  stimulate  the  Court  to  the  perform¬ 
ance  of  its  duty.  And  if,  under  such  circumstances,  the  Spanish  mi¬ 
nister  had  invoked  the  aid  of  the  Executive  in  the  manner  suggested  by 
the  District  Attorney,  it  would  seem  only  to  have  been  necessary  for 
the  Executive  to  reply,  that  the  parties  in  interest  were  pursuing  their 
claims  before  a  judicial  tribunal,  in  whose  custody  the  subject  of  liti¬ 
gation  had  been  placed,  and  by  whose  decision  alone  it  could  be  con¬ 
trolled. 

No  sovereign  rights  of  a  foreign  government  were  here  in  question, 
to  oust  the  Court  of  its  jurisdiction  over  the  property,  as  in  the  case  of 
the  Exchange,  (7  Cranch,  116,)  where  a  public  armed  ship  in  the  ser¬ 
vice  of  a  foreign  government,  having  entered  the  port  of  Philadelphia, 
under  an  implied  promise  of  exemption  from  the  jurisdiction  of  the 
country,  was  libelled  as  the  property  of  an  American  citizen,  and  seized 
under  process  of  the  District  Court.  A  foreign  sovereign  could  not  of 
course  appear  before  our  judicial  tribunals  to  vindicate  his  public  rights ; 
and  it  was  therefore  very  properly  holden  that  a  necessity  existed  for 
allowing  the  fact, "which  deprived  the  Court  of  its  jurisdiction,  to  be 
disclosed  by  the  suggestion  of  the  Attorney  for  the  United  States. 

But  in  this  case  the  District  Attorney  suggests  that  the  Africans  are 
demanded  by  the  Spanish  minister  merely  as  private  property ,  to  be 
delivered  to  their  owners.  And,  instead  of  denying,  as  in  the  case  of 
the  Exchange,  the  jurisdiction  of  the  Court,  he  expressly  admits  it  in 
his  suggestion  of  the  19th  of  November,  and  applies  for  the  issuing  of 
its  process,  although  the  Africans  were  already  in  custody  on  the  libels 
of  Gedney,  and  of  Ruiz  and  Montez. 


11 


What  occasion,  then,  was  there  for  any  interference  in  this  case  by 
the  Executive  Government  of  the  United  States  to  control  or  direct  the 
action  of  the  Court  1  Are  not  treaties,  and  all  the  duties  imposed  by 
them  in  regard  to  property  in  litigation,  obligatory  on  the  Court,  as  the 
supreme  law  of  the  land,  as  much  without  the  intervention  of  the 
Executive  as  with  it  1  Did  the  suggestion,  that  the  claims  of  Ruiz  and 
Montez  were  urged  by  the  Spanish  minister,  add  any  thing  to  their 
strength  or  justice!  Ought  it,  in  any  way,  to  influence  or  affect  the 
decision  of  the  Court  X 

For  what  purpose,  then,  I  again  ask,  do  the  United  States  appear  in 
these  proceedings  X  They  make  no  allegations,  and  put  no  fact  in 
issue  in  regard  to  the  Africans.  They  admit  the  jurisdiction  of  the 
Court;  and  claim  no  interest  of  their  own  to  be  affected  by  its  decision. 
The  question  of  freedom  or  slavery  was  in  issue  only  between  Ruiz  and 
Montez  and  the  Africans.  It  was  decided  in  favor  of  the  Africans,  by 
a  court  whose  jurisdiction  was  expressly  admitted  by  the  Spanish  libel¬ 
lants.  Between  those  parties,  therefore,  it  was  conclusively  decided 
not  only  that  the  Africans  were  not  the  property  of  Ruiz  and  Montez 
(9  Wheaton,  410  ;  8  Peters,  4-10;  9  Wheaton,  367,)  but  that  they 
were  not  property ,  but  freemen,  in  possession  of  all  their  natural 
rights. 

As  Ruiz  and  Montez  have  not  appealed  from  this  decision,  and  the 
Spanish  minister  has  never  authorized  an  appearance  or  an  appeal  in  his 
behalf,  (See  Doc.  185,  H.  R.  1840,  and  Senate  Doc.  179,  1841,)  it 
follows  that  there  is  no  allegation  by  any  party  before  this  court ,  that 
the  Africans  are  the  property  of  any  one,  or  indeed  that  they  are  pro¬ 
perty  j — a  fact,  the  establishment  of  which,  as  has  already  been  remark¬ 
ed,  lies  at  the  very  foundation  of  the  jurisdiction  of  any  court  or  de¬ 
partment  of  the  Government  in  regard  to  them.  And  the  only  allega¬ 
tion  that  is  made,  namely,  that  they  have  been  demanded  as  property , 
by  the  Spanish  minister,  to  be  surrendered  to  their  owners,  is  utterly 
untrue.  For  the  Chevalier  de  Argaiz,  in  his  letter  to  Mr.  Forsyth,  of 
Nov.  26,  1839,  expressly  declares  “  that  the  legation  of  Spain  does  not 
demand  the  delivery  of  slaves,  but  of  assassins.”  Yet  it  is  under  process 
issued  on  that  suggestion  merely,  that  they  are  now  detained  in  custo¬ 
dy,  after  a  judicial  decision  in  favor  of  their  freedom,  from  which  the 
Spanish  libellants  have  not  appealed. 

Who,  then,  can  again  draw  in  question  a  fact  thus  solemnly  decided  X 
By  whom  is  it  attempted  X  What  is  the  issue  this  Court  is  called  upon 
to  decide  X  and  between  what  parties  is  it  made  X 


12 


The  United  States,  in  their  own  right,  having  no  interest  in  the  sub- 
ject  matter  in  controversy,  could  have  had  no  motive  for  making  them¬ 
selves  a  party  to  the  proceedings,  except  to  claim  the  delivery  of  the 
Africans  to  the  Executive  as  their  protector,  to  enable  him  to  fulfil  the 
beneficent  designs  of  the  Act  of  Congress  of  1819.  It  was  in  that  ca¬ 
pacity  that  the  Executive  Government  appeared  and  acted  in  the  case  of 
the  Antelope,  (10  Wheaton,  66,)  to  deliver,  not  to  enslave  ;  to  restore  the 
oppressed  to  their  country,  not  to  aid  the  robber  in  rivetting  their  chains. 
The  similar  claim  made  by  the  United  States  in  the  present  case,  was 
sanctioned  by  the  Court ;  who  decreed  that  the  Africans  should  be  de¬ 
livered  to  the  Executive  to  be  transported  to  Africa,  pursuant  to  the  act 
of  Congress,  in  precise  conformity  with  the  request  of  the  District  At¬ 
torney.  How  then  could  the  United  States  be  aggrieved  by  the  decree 
so  as  to  entitle  them  to  an  appeal  1  What  allegation  of  theirs  does  it 
contradict  1  What  fact  put  in  issue  by  them  does  it  deny  1  None 
whatever.  They  asked  for  no  decree  other  than  such  as  was  actually 
made,  except  on  the  contingency  that  the  Court  should  find,  on  the  al¬ 
legations  of  the  Spanish  claimants,  that  the  Africans  were  their  property. 
That  fact  was  not  found  by  the  Court,  and  the  Spanish  claimants,  be¬ 
tween  whom  and  the  Africans  the  question  of  property  or  freedom  was 
put  in  issue,  have  not  appealed  from  the  decision. 

The  Africans,  although  as  freemen,  they  might  well  complain  of  it, 
have  taken  no  appeal  from  the  decree  which  places  them  in  the  hands 
of  the  Executive.  The  Government  of  the  United  States  have  not  ap¬ 
pealed  on  their  own  account,  to  avoid  the  burthen  of  transporting  the 
Africans  to  their  homes.  In  that  capacity  they  could  not  appeal  from 
the  decree  they  prayed  for,  nor  have  they  attempted  it.  The  appeal 
itself  exhibits  on  the  face  of  it  the  character  in  which  it  is  taken  by  the 
United  States :  “  The  United  States,  claiming  as  aforesaid  in  pursuance 
of  a  demand  made  upon  them  by  the  Minister  of  Her  Catholic  Majesty , 
move  an  appeal.'’  And  that  is  the  only  appeal  which  has  been  taken 
from  the  decree  of  the  Court  below. 

What  clause  in  the  Constitution  or  what  law  confers  on  the  Execu- 
tive  the  right  of  appearing  as  a  suitor  in  the  courts  of  the  United  States 
to  prosecute  claims  to  property  of  any  sort  as  the  representative  of 
foreigners,  and  to  appeal  from  court  to  court  in  their  behalf  I  It  will 
not  be  pretended  that  any  such  power  is  expressly  conferred.  If  it  ex¬ 
ists,  it  must  be  implied ,  because  it  is  necessary  to  the  peformance  of 
some  duty  imposed  on  the  National  Executive  in  regard  to  such  proper¬ 
ty.  But  no  such  duty  or  necessity  can  exist  where  the  property  in 


13 


controversy  is  in  custody  of  the  law,  or  subject  to  the  process  and  juris¬ 
diction  of  the  courts.  In  such  cases  the  judicial  tribunals  are  accessible 
to  all  who  claim  an  interest  in  the  property.  Foreigners  as  well  as 
citizens  can  there  appear,  and  claim  and  prosecute  for  themselves  ;  and 
if  they  are  absent  from  the  country,  the  consul  or  other  official  function¬ 
ary  of  their  government  is  permitted  to  appear  in  their  stead,  and  vindi¬ 
cate  their  rights. 

The  fact  that  the  restoration  of  property  in  legal  custody  is  claimed 
under  a  treaty ,  and  demanded  of  the  Executive  by  a  foreign  minister,  in 
behalf  of  the  subjects  of  his  government,  imposes  no  duty  on  the  Execu¬ 
tive  in  regard  to  it.  The  property  is  not  under  his  control ;  and  the 
judicial  power,  being  sovereign  within  its  sphere  of  action,  must  decide 
on  the  claims  of  the  litigating  parties  without  reference  to  the  wishes  or 
suggestions  of  the  Executive.  2  Mason,  436,  463.  La  Jeune  Eugenie. 

It  is  unlike  the  case  of  a  national  demand  for  a  national  purpose ; 
such,  for  example,  as  a  demand  of  the  extradition  of  a  fugitive  criminal 
to  a  foreign  government  for  punishment,  as  in  the  case  of  Nash,  under 
the  treaty  with  Great  Britain ;  (Bee’s  Admiralty,  286,  note,)  or  a  de¬ 
mand  for  the  surrender  of  a  public  armed  vessel  of  a  foreign  govern¬ 
ment  wrongfully  subjected  to  judicial  process,  as  in  the  cases  of  the 
Cassius  (3  Dali.  121)  and  Exchange ,  (7  Cranch,  116.) 

Those  are  cases  which,  from  their  very  nature,  pertain  to  the  Ex¬ 
ecutive,  and  not  to  the  judicial  cognizance.  But  there  are  a  great  va¬ 
riety  of  stipulations  in  all  our  treaties  for  the  security  of  private  rights, 
which  are  necessarily  enforced  by  the  judicial  tribunals  alone,  without 
the  interference  of  the  Executive  power.  Bee’s  Admiralty,  286,  7,  note. 

In  cases  of  capture  of  belligerent  vessels  made  within  our  jurisdiction 
in  violation  of  our  neutrality,  we  are  bound  by  treaty  to  restore  the 
property,  if  within  our  power,  to  the  original  owner.  “  Doubts  were  at 
first  entertained,”  during  the  administration  of  General  Washington, 
“  whether  it  belonged  to  the  Executive  Government,  or  the  Judiciary, 
to  perform  the  duty  of  inquiring  into  captures  made  within  the  neutral 
territory,  and  of  making  restitution  to  the  injured  party ;  but  it  has  been 
long  since  settled  that  this  duty  appropriately  belongs  to  the  Federal 
tribunals,  acting  as  Courts  of  Admiralty  and  maritime  jurisdiction.” 
Wheaton’s  El.  289  ;  4  Wheat.  65,  note ;  7  Wheat.  284. 

While  those  doubts  existed,  it  was  never  supposed  that  the  Executive 
could  call  upon  the  courts  to  aid  him  in  the  performance  of  a  duty  per¬ 
taining  to  that  department.  President  Washington,  in  his  message  of 
Dec.  3,  1793,  (1  Waite’s  State  Papers,  39,)  says  “  If  the  Executive  is 


14 


to  be  the  resort,  it  is  hoped  that  he  will  be  authorized  by  law  to  have 
facts  ascertained  by  the  courts  when,  for  his  own  information,  he  shall 
desire  it.” 

So,  on  the  other  hand,  whenever  the  duty  of  rendering  justice  to  for¬ 
eigners  is  imposed  upon  the  Judiciary  of  the  United  States,  whether  by 
treaty  or  otherwise,  it  is  to  be  presumed  it  will  be  as  faithfully  per¬ 
formed  by  that  department  without  the  intervention  of  the  Executive 
as  with  it.  And  the  judgment  of  the  courts  upon  the  rights  of  the  par¬ 
ties  to  the  record,  must,  as  between  those  parties,  be  conclusive  till  re¬ 
versed  by  some  higher  tribunal,  to  which  they  have  liberty  of  appeal. 

In  the  present  case  there  could  be  no  necessity  for  the  intervention 
of  the  Executive,  since  the  claimants  of  the  Africans  appeared  in  per¬ 
son, — prayed  the  process  of  the  court  against  them,  and  submitted  them¬ 
selves  to  its  jurisdiction,  as  the  treaty  gave  them  a  right  to  do. 

2d.  But  if  the  Government  of  the  United  States  could  appear  in  any 
case  as  the  representative  of  foreigners  claiming  property  in  the  Court 
of  Admiralty,  it  has  no  right  to  appear  in  their  behalf  to  aid  them  in  the 
recovery  of  fugitive  slaves ,  even  when  domiciled  in  the  country  from 
which  they  escaped :  much  less  the  recent  victims  ol  the  African  slave 
trade,  who  have  sought  an  asylum  in  one  of  the  free  States  of  the  Union, 
without  any  wrongful  act  on  our  part,  or  for  which,  as  in  the  case  of 
the  Antelope,  we  are  in  way  responsible. 

The  recently  imported  Africans  of  the  Amistad,  if  they  were  ever 
slaves,  which  is  denied,  were  in  the  actual  condition  of  freedom  when 
they  came  within  the  jurisdictional  limits  of  the  State  of  New  York. 
They  came  there  without  any  wrongful  act  on  the  part  of  any  officer  or 
citizen  of  the  United  States.  They  were  in  a  State  where,  not  only  no 
law  existed  to  make  them  slaves,  but  where,  by  an  express  statute,  all 
persons,  except  fugitives,  &c.,  from  a  sister  State,  are  declared  to  be  free. 
They  were  under  the  protection  of  the  laws  of  a  State  which,  in  the 
language  of  the  Supreme  Court  in  the  case  of  Miin  vs.  the  City  of  New 
York,  11  Peters,  139,  “has  the  same  undeniable  and  unlimited  juris¬ 
diction  over  all  persons  and  things  within  its  territorial  limits,  as  any 
foreign  nation,  wrhen  that  jurisdiction  is  not  surrendered  or  restrained  by 
the  Constitution  of  the  United  States.” 

The  American  people  have  never  imposed  it  as  a  duty  on  the  Gov¬ 
ernment  of  the  United  States  to  become  actors  in  an  attempt  to  reduce 
to  slavery  men  found  in  a  state  of  freedom,  by  giving  extra-territorial 
force  to  a  foreign  slave  law.  Such  a  duty  would  not  only  be  repugnant 
to  the  feelings  of  a  large  portion  of  the  citizens  of  the  United  States, 


15 


but  it  would  be  wholly  inconsistent  with  the  fundamental  principles  ol 
our  Government,  and  the  purposes  for  which  it  was  established,  as  well 
as  with  its  policy  in  prohibiting  the  slave  trade  and  giving  freedom  to  its 
victims. 

The  recovery  of  slaves  for  their  owners,  whether  foreign  or  domestic, 
is  a  matter  with  which  the  Executive  of  the  United  States  has  no  con¬ 
cern.  The  Constitution  confers  upon  the  Government  no  power  to  es¬ 
tablish  or  legalize  the  institution  of  slavery.  It  recognizes  it  as  exist¬ 
ing  in  regard  to  persons  held  to  service  by  the  laws  of  the  States  which 
tolerate  it ;  and  contains  a  compact  between  the  States,  obliging  them 
to  respect  the  rights  acquired  under  the  slave  laws  of  other  States  in  the 
cases  specified  in  the  Constitution.  But  it  imposes  no  duty,  and  con¬ 
fers  no  power  on  the  Government  of  the  United  States  to  act  in  regard 
to  it.  So  far  as  the  compact  extends,  the  courts  of  the  United  States, 
whether  sitting  in  a  free  State  or  a  slave  State,  will  give  effect  to  it. 
Beyond  that,  all  persons  within  the  limits  of  a  State  are  entitled  to  the 
protection  of  its  laws. 

If  these  Africans  had  been  taken  from  the  possession  of  their  Spanish 
claimants,  and  wrongfully  brought  into  the  United  States  by  our  citi¬ 
zens,  a  question  would  have  been  presented  similar  to  that  which  exist¬ 
ed  in  the  case  of  the  Antelope.  But  when  men  have  come  here  volun¬ 
tarily,  without  any  wrong  on  the  part  of  the  Government  or  citizens  of 
the  United  States,  in  withdrawing  them  from  the  jurisdiction  of  the 
Spanish  laws,  why  should  this  Government  be  required  to  become  ac¬ 
tive  in  their  restoration  1  They  appear  here  as  freemen.  They  are  in 
a  State  where  they  are  presumed  to  be  free.  They  stand  before  our 
courts  on  equal  ground  with  their  claimants ;  and  when  the  courts, 
after  an  impartial  hearing  with  all  parties  in  interest  before  them,  have 
pronounced  them  free,  it  is  neither  the  duty  nor  the  right  of  the  Execu¬ 
tive  of  the  United  States  to  interfere  with  the  decision. 

The  question  of  the  surrender  of  fugitive  slaves  to  a  foreign  claimant, 
if  the  right  exists  at  all,  is  left  to  the  comity  of  the  States  which  tole¬ 
rate  slavery.  The  Government  of  the  United  States  has  nothing  to  do 
with  it.  In  the  letter  of  instructions  addressed  by  Mr.  Adams,  when 
Secretaiy  of  State,  to  Messrs.  Gallatin  and  Rush,  dated  Nov.  2,  1818, 
in  relation  to  a  proposed  arrangement  with  Great  Britain  for  a  more  ac¬ 
tive  co-operation  in  the  suppression  of  the  slave  trade,  he  assigns  as  a 
reason  for  rejecting  the  proposition  for  a  mixed  commission  “that  the 
disposal  of  the  negroes  found  on  board  the  slave-trading  vessels  which 
might  be  condemned  by  the  sentence  of  the  mixed  courts  cannot  be 


16 


/ 


carried  into  effect  by  the  United  States.”  “  The  condition  of  the  blacks 
being  in  this  Union  regulated  by  the  municipal  laws  of  the  separate 
States,  the  Government  of  the  United  States  can  neither  guarantee  their 
liberty  in  the  States  where  they  could  only  be  received  as  slaves,  nor 
control  them  in  the  States  where  they  would  be  recognized  as  free.” 
Doc.  48,  H.  Rep.  2  sess.  16th  Cong.  p.  15. 

It  may  comport  with  the  interest  or  feelings  of  a  slave  State  to  sur¬ 
render  a  fugitive  slave  to  a  foreigner,  or  at  least  to  expel  him  from  their 
borders.  But  the  people  of  New  England,  except  so  far  as  they  are 
bound  by  the  compact,  would  cherish  and  protect  him.  To  the  extent 
of  the  compact  we  acknowledge  our  obligation,  and  have  passed  lawTs 
for  its  fulfilment.  Beyond  that  our  citizens  w'ould  be  unwilling  to  go. 

A  State  has  no  power  to  surrender  a  fugitive  criminal  to  a  foreign 
government  for  punishment;  because  that  is  necessarily  a  matter  of 
national  concern.  The  fugitive  is  demanded  for  a  national  purpose. 
But  the  question  of  the  surrender  of  fugitive  slaves  concerns  individuals 
merely.  They  are  demanded  as  property  only,  and  for  private  pur¬ 
poses.  It  is,  therefore,  a  proper  subject  for  the  action  of  the  state,  and 
not  of  the  national  authorities. 

The  surrender  of  neither  is  demandable  of  right,  unless  stipulated  by 
treaty.  See  as  to  the  surrender  of  fugitive  criminals ,  2  Brock.  Rep. 
493 ;  2  Sumner,  482 ;  14  Peters,  540 ;  Doc.  199  H.  R.  26  Cong, 
p.  53,  70  ;  10  Amer.  State  Pap.  151,  3,  433  ;  3  Hall’s  Law  Jour.  135. 
An  overture  was  once  made  by  the  Government  of  the  United  States  to 
negotiate  a  treaty  with  Great  Britain  for  the  mutual  surrender  of  fugi¬ 
tive  slaves.  But  it  was  instantly  repelled  by  the  British  Government. 
It  may  well  be  doubted  whether  such  a  stipulation  is  wfrthin  the  treaty¬ 
making  power  under  the  constitution  of  the  United  States.  “  The 
power  to  make  treaties,”  says  Chief  Justice  Taney,  14  Pet.  569,  “is 
given  in  general  terms  ....  and  consequently  it  w’as  designed  to  include 
all  those  subjects  which  in  the  ordinaiy  intercourse  of  nations  had 
usually  been  made  subjects  of  negotiation  and  treaty ;  and  which  are 
consistent  with  the  nature  of  our  institutions ,  and  the  distribution  of 
powers  between  the  general  and  state  governments.”  See  14  Peters, 
569,  Holmes  vs.  Jennison.  But,  however  this  may  be,  the  attempt  to 
introduce  it  is  evidence  that,  unless  provided  for  by  treaty,  the  obliga¬ 
tion  to  surrender  wras  not  deemed  to  exist. 

3dly.  If  there  was  no  objection  to  the  appeal  on  account  of  the  want  of 
interest,  or  of  power  in  the  Executive  Government  of  the  United  States, 
in  any  case,  to  prosecute  an  appeal  as  the  representative  of  others,  to 


n 


aid  in  the  recovery  of  fugitive  slaves,  we  claim  that  the  appeal  in  the 
present  case  ought  to  be  dismissed,  on  the  ground  that  it  is  not  com¬ 
petent  for  any  Court  of  Admiralty  of  the  United  States,  to  recognize  as 
property ,  the  recent  victims  of  the  African  slave  trade,  who  have 
achieved  their  own  deliverance  from  slavery,  and  arrived  here  in  the 
condition  of  freemen.  Neither  the  Executive  nor  the  Courts  of  the 
United  States  can,  for  such  a  purpose,  give  extra-territorial  force  to  the 
municipal  laws  of  a  foreign  state.  It  would  be  equally  at  war  with  the 
fundamental  principles  and  policy  of  our  government,  as  with  the  claims 
of  humanity  and  justice.  No  state  in  this  Union  regards  them  as  pro¬ 
perty.  As  the  victims  of  piracy  they  are  entitled  to  their  freedom 
when  imported  by  our  own  citizens,  and  no  principle  of  comity  can 
require  us  to  regard  them  as  property  when  claimed  by  foreigners. 
9  Wheaton,  370,  362 ;  2  Mason,  158-161,  446  ;  1  Burg.  Confl.  741  ; 
Story’s  Confl.  92  ;  2  Barn,  and  Cress.  463. 

We  deny  that  Ruiz  and  Montez,  Spanish  subjects,  had  a  right  to  call 
on  any  officer  or  Court  of  the  United  States  to  use  the  force  of  the  go¬ 
vernment,  or  the  process  of  the  law  for  the  purpose  of  again  enslaving 
those  who  have  thus  escaped  from  foreign  slavery,  and  sought  an  asylum 
here.  We  deny  that  the  seizure  of  these  persons  by  Lt.  Gedney  for 
such  a  purpose  was  a  legal  or  justifiable  act. 

How  would  it  be, — independently  of  the  treaty  between  the  United 
States  and  Spain, — upon  the  principles  of  our  government,  of  the  com¬ 
mon  law,  or  of  the  law  of  nations  1 

If  a  foreign  slave  vessel,  engaged  in  a  traffic  which  by  our  laws  is 
denounced  as  inhuman  and  piratical,  should  be  captured  by  the  slaves 
while  on  her  voyage  from  Africa  to  Cuba,  and  they  should  succeed  in 
reaching  our  shores,  have  the  constitution  or  laws  of  the  United  States 
imposed  upon  our  judges,  our  naval  officers,  or  our  executive,  the  duty 
of  seizing  the  unhappy  fugitives  and  delivering  them  up  to  their  op¬ 
pressors  1  Did  the  people  of  the  United  States,  whose  government  is 
based  on  the  great  principles  of  the  revolution,  proclaimed  in  the  De¬ 
claration  of  Independence,  confer  upon  the  federal  executive  or  judicial 
tribunals,  the  power  of  making  our  nation  accessories  to  such  atrocious 
violations  of  human  right  1 

Is  there  any  principle  of  international  law,  or  law  of  comity  which 
requires  it  \  Are  our  Courts  bound ,  and  if  not,  are  they  at  liberty ,  to 
give  effect  here  to  the  slave-trade  laws  of  a  foreign  nation, — to  laws  af¬ 
fecting  strangers,  never  domiciled  there,  when,  to  give  them  such  effect 
would  be  to  violate  the  natural  rights  of  men  1 

3 


These  questions  are  answered  in  the  negative  by  all  the  most  ap¬ 
proved  writers  on  the  laws  of  nations.  1  Burg.  Confl.  741 ;  Story, 
Confl.  92. 

“  There  exists,’’  says  Burge,  “  a  status  which  is  legal  in  the  country 
in  which  it  is  constituted,  but  illegal  in  another  country  to  which  the 
person  may  resort.  In  this  conflict  there  has  been  an  uniformity  of 
opinion  among  jurists,  and  of  decisions  by  judicial  tribunals,  in  giving- 
no  effect  to  the  status  however  legal  it  may  have  been  in  the  country 
in  which  the  person  was  born,  or  in  which  he  was  previously  domiciled 
if  it  be  not  recognized  by  the  law  of  his  actual  domicil.  This  princi¬ 
ple  was  adopted  by  the  Supreme  Council  of  Mechlin  as  established  law 
in  1531.  It  refused  to  issue  a  warrant  to  take  up  a  person  who  had 
escaped  from  Spain,  where  he  had  been  brought  and  legally  held  in 
slavery.”  Christ.  Dec.  tom  4.  Dec.  80. 

By  the  law  of  France,  the  slaves  of  their  colonies,  immediately  on 
their  arrival  in  France,  become  free. 

In  the  case  of  Forbes  vs.  Cochrane,  2  Bara,  and  Cress.  463,  this 
question  is  elaborately  discussed  and  settled  by  the  English  Court  of 
K.  B.  “  The  right  to  slaves,”  it  is  there  said,  “  when  tolerated  by  law, 
is  founded  not  on  the  law  of  nature,  but  on  the  law  of  that  particular 
country.  It  is  a  law  in  invitum  ;  and  when  a  party  gets  out  of  the 
power  of  his  master,  and  gets  under  the  protection  of  another  power, 
without  any  wrongful  act  done  by  the  party  giving  that  protection,  the 
right  of  the  master,  which  is  founded  on  the  municipal  law  of  the  par¬ 
ticular  place  only,  does  not  continue.  The  moment  a  foreign  slave 
puts  his  foot  on  our  shores,  he  ceases  to  be  a  slave,  because  there  is  no 
law  here  which  sanctions  his  being  held  in  slavery.  And  the  local 
law  which  held  him  in  slavery  against  the  law  of  nature  has  lost  its 
force.”  9  Eng.  C.  L.  Rep.  145. 

By  the  law  of  the  State  of  New  York,  a  foreign  slave  escaping  into 
that  state  becomes  free.  And  the  Courts  of  the  United  States  in  acting 
upon  the  personal  rights  of  men  found  within  the  jurisdiction  of  a  free 
state,  are  bound  to  administer  the  laws  as  they  would  be  administered 
by  the  state  courts,  in  all  cases  in  which  the  laws  of  the  state  do  not 
conflict  with  the  laws  or  obligations  of  the  United  States.  The  United 
States  as  a  nation  have  prohibited  the  slave  trade  as  inhuman  and  pi¬ 
ratical,  and  they  have  no  law  authorizing  the  enslaving  of  its  victims. 
It  is  a  maxim,  to  use  the  words  of  an  eminent  English  judge  in  the 
case  of  Forbes  vs.  Cochrane,  2  B.  and  C.,  “that  what  is  called  comitas 
inter  communitates ,  cannot  prevail  in  any  case,  where  it  violates  the 


19 


law  of  our  own  country,  the  law  of  nature,  or  the  law  of  God.”  9  Eng. 
C.  L.  R.  149.  And  that  the  laws  of  a  nation  proprio  vigore  have  no 
force  beyond  its  own  territories,  except  so  far  as  it  respects  its  own  citi¬ 
zens,  who  owe  it  allegiance,  is  too  familiarly  settled  to  need  the  citation 
of  authorities.  See  9  Wheaton,  366  ;  Apollon,  2  Mason,  151-8.  The 
rules  on  this  subject  adopted  in  the  English  Court  of  Admiralty  are  the 
same  which  prevail  in  their  courts  of  common  law,  though  they  have 
decided  in  the  case  of  the  Louis  (2  Dodson,  238)  as  the  Supreme  Court 
did  in  the  case  of  the  Antelope,  (10  Wheat.  66,)  that  as  the  slave  trade 
was  not,  at  that  time,  prohibited  by  the  law  of  nations,  if  a  foreign 
slaver  was  captured  by  an  English  ship,  it  was  a  wrongful  act,  which  it 
would  be  the  duty  of  the  Court  of  Admiralty  to  repair  by  restoring  the 
possession.  The  principle  of  amoveas  manus ,  adopted  in  these  cases, 
has  no  application  to  the  case  of  fugitives  from  slavery. 

In  this  case  the  wrongful  act  was  done  to  the  Africans,  by  the  seizure 
of  them  by  Lt.  Gedney  without  warrant  or  authority.  An  officer  of 
the  United  States  is  not  invested  with  the  power  of  seizing  the  person 
of  a  citizen  or  a  stranger,  unless  he  has  committed  some  crime  for 
which  he  is  liable  to  be  punished  by  the  Courts  of  the  United  States. 
See  Doc.  199.  H.  Rep.  26  Cong.  1  sess.  p.  57.  (Mr.  Wirt’s  opinion  as 
Attorney  General  in  the  case  of  Manning.)  The  principle  adopted  in 
the  cases  of  the  Louis  and  the  Antelope  would  require  the  restoration, 
if  not  of  the  property  in  their  possession,  at  least  of  their  liberty,  to  the 
Africans,  who  were  in  the  exercise,  when  seized,  of  their  rights  as  free¬ 
men.  Certainly  it  does  not  warrant  their  delivery  by  the  Courts  of  the 
United  States  as  property  to  their  captive  Spaniards. 

But  it  is  claimed  that  if  these  Africans,  though  u  recently  imported 
into  Cuba,”  were  by  the  laws  of  Spain  the  property  of  Ruiz  and 
Montez,  the  Government  of  the  United  States  is  bound  by  the  treaty  to 
restore  them ;  and  that,  therefore,  the  intervention  of  the  Executive  in 
these  proceedings  is  proper  for  that  purpose.  It  has  already,  it  is  be¬ 
lieved,  been  shown  that  even  if  the  case  were  within  the  treaty,  the 
intervention  of  the  Executive  as  a  party  before  the  judicial  tribunals 
was  unnecessary  and  improper,  since  the  treaty  provides  for  its  own 
execution  by  the  courts  on  the  application  of  the  parties  in  interest. 
And  such  a  resort  is  expressly  provided  in  the  20th  Article  of  the  Treaty 
of  1794  with  Great  Britain,  and  in  the  26th  Article  of  the  Treaty  of 
1801  with  the  French  Republic,  both  of  which  are  in  other  respects 
similar  to  the  9th  Article  of  the  Spanish  Treaty,  on  which  the  Attorney 
Genera]  has  principally  relied. 


20 


The  6th  Article  of  the  Spanish  Treaty  has  received  a  judicial  con¬ 
struction  in  the  case  of  the  Santissima  Trinidad,  (7  Wheat.  284,)  where 
it  was  decided  that  the  obligation  assumed  is  simply  that  of  protecting 
belligerent  vessels  from  capture  within  our  jurisdiction.  It  can  have 
no  application  therefore  to  a  case  like  the  present. 

The  9th  Article  of  that  treaty  provides  “  that  all  ships  and  merchan¬ 
dise  of  what  nature  soever,  which  shall  be  rescued  out  of  the  hands  of 
pirates  or  robbers ,  on  the  high  seas,  shall  be  brought  into  some  port  of 
either  state,  and  shall  be  delivered  to  the  custody  of  the  officers  of  that 
port,  in  order  to  be  taken  care  of,  and  restored  entire  to  the  true  pro¬ 
prietors,  as  soon  as  due  and  sufficient  proof  shall  be  made  concerning 
the  property  thereof P 

To  render  this  clause  of  the  treaty  applicable  to  the  case  under  con¬ 
sideration,  it  must  be  assumed  that  under  the  term  “  merchandise”  the 
contracting  parties  intended  to  include  slaves  ;  and  that  slaves,  them¬ 
selves  the  recent  victims  of  piracy,  who,  by  a  successful  revolt,  have 
achieved  their  deliverance  from  slavery,  on  the  high  seas,  and  have 
availed  themselves  of  the  means  of  escape  of  which  they  have  thus  ac¬ 
quired  the  possession,  are  to  be  deemed  “  pirates  and  robbers”  “  from 
whose  hands”  such  “  merchandise  has  been  rescued.” 

It  is  believed  that  such  a  construction  of  the  words  of  the  treaty  is 
not  in  accordance  with  the  rules  of  interpretation  which  ought  to 
govern  our  courts  ;  and  that  when  there  is  no  special  reference  to 
human  beings  as  property, — who  are  not  acknowledged  as  such  by  the 
law  or  comity  of  nations  generally,  but  only  by  the  municipal  laws  of 
the  particular  nations  which  tolerate  slavery,  it  cannot  be  presumed  that 
the  contracting  parties  intended  to  include  them  under  the  general 
term  “merchandise.”  As  has  already  been  remarked,  it  may  well  be 
doubted  whether  such  a  stipulation  would  be  "within  the  treaty  making 
power  of  the  United  States.  It  is  to  be  remembered  that  the  Govern¬ 
ment  of  the  United  States  is  based  on  the  principles  promulgated  in  the 
Declaration  of  Independence  by  the  Congress  of  1776  ;  “  that  all  men 
are  created  equal ; — that  they  are  endowed  by  their  Creator  with  cer¬ 
tain  inalienable  rights, — that  among  these  are  life,  liberty,  and  the  pur¬ 
suit  of  happiness ;  and  that  to  secure  these  rights  governments  are  insti¬ 
tuted.” 

The  Convention  which  formed  the  Federal  Constitution,  though  they 
recognized  slavery  as  existing  in  regard  to  persons  held  to  labor  by  the 
laws  of  the  States  which  tolerated  it,  were  careful  to  exclude  from  that 
instrument  every  expression  that  might  be  construed  into  an  admission 


I 


21 


that  there  could  be  'property  in  men.  It  appears  by  the  report  of  the 
proceedings  of  the  Convention,  (3  Madison  Papers,  1428),  that  the  first 
Clause  of  Section  9,  Article  1,  which  provides  for  the  imposition  of  a  tax 
or  duty  on  the  importation  of  such  persons  as  any  of  the  States  then  ex¬ 
isting  might  think  proper  to  admit,  &c.,  “  not  exceeding  ten  dollars  for 
each  person ,”  was  adopted  in  its  present  form,  in  consequence  of  the 
opposition  by  Roger  Sherman  and  James  Madison  to  the  clause  as  it 
was  originally  reported,  on  the  ground  “  that  it  admitted  that  there 
could  be  property  in  men ;”  an  idea  which  Air.  Madison  said  “  he 
thought  it  wrong  to  admit  in  the  Constitution.”  The  words  reported 
by  the  committee,  and  stricken  out  on  this  objection  were  :  “  a  tax  or 
duty  may  be  imposed  on  such  migration  or  importation  at  a  rate  not 
exceeding  the  average  of  the  duties  laid  upon  imports.”  The  Consti¬ 
tution  as  it  now  stands  will  be  searched  in  vain  for  an  expression  recog¬ 
nizing  human  beings  as  merchandise  or  legitimate  subjects  of  commerce. 
In  the  case  of  New  York  vs.  Miln,  11  Peters,  104,  136,  Judge  Bar¬ 
bour,  in  giving  the  opinion  of  the  court,  expressly  declares,  in  re¬ 
ference  to  the  power  “  to  regulate  commerce”  conferred  on  Congress 
by  the  Constitution,  that  “ persons  are  not  the  subjects  of  com¬ 
merce.”  Judging  from  the  public  sentiment  which  prevailed  at  the 
time  of  the  adoption  of  the  Constitution,  it  is  probable  that  the  first  act 
of  the  goverment  in  the  exercise  of  its  power  to  regulate  commerce, 
would  have  been  to  prohibit  the  slave  trade,  if  it  had  not  been  restrain¬ 
ed  until  1808,  from  prohibiting  the  importation  of  such  persons  as  any 
of  the  States,  then  existing,  should  think  proper  to  admit.  But  could 
Congress  have  passed  an  act  authorizing  the  importation  of  slaves  as 
articles  of  commerce,  into  any  State  in  opposition  to  a  law  of  the  state, 
prohibiting  their  introduction  1  If  they  could,  they  may  now  force 
slavery  into  every  state.  For  no  state  can  prohibit  the  introduction  of 
legitimate  objects  of  foreign  commerce,  when  authorized  by  Congress. 

In  the  construction  of  all  general  terms  used  in  the  laws  of  United  States, 
or  in  treaties  to  which  they  may  be  parties,  the  fundamental  principles 
of  the  government  and  people  of  the  United  States,  in  their  collective 
capacity  as  a  nation ,  as  set  forth  in  their  Declaration  of  Independence 
to  the  world,  are  to  be  applied,  unless  the  law  of  nations  requires  a 
different  interpretation.  See  Vattel,  B  II.  CXVII.  §  271.  280.  300.  302. 
307-8-11.  In  the  case  of  Arredondo,  6  Peters  710,  the  Supreme  Court 
say :  “  by  the  stipulations  of  a  treaty  are  to  be  understood  its  language 
and  apparent  intention  manifested  in  the  instrument  with  a  reference  to 
the  contracting  parties,  the  subject  matter,  and  persons  on  whom  it  is 
to  operate.” 


n 


The  United  States  must  be  regarded  as  comprehending  free  States  as 
well  as  slave  States  : — States  which  do  not  recognize  slaves  as  property, 
as  well  as  States  which  do  so  regard  them.  When  all  speak  as  a  na¬ 
tion,  general  expressions  ought  to  be  construed  to  mean  what  all  under¬ 
stand  to  be  included  in  them ;  at  all  events,  what  may  be  included  con¬ 
sistently  with  the  law  of  nature. 

The  9th  article  of  the  Spanish  Treaty  was  copied  from  the  16th  ar¬ 
ticle  of  the  Treaty  with  France,  concluded  in  1778,  in  the  midst  of  the 
war  of  the  Revolution,  in  which  the  great  principles  of  liberty  pro¬ 
claimed  in  the  Declaration  of  Independence  were  vindicated  by  our 
fathers. 

By  “  merchandise  rescued  from  pirates,”  the  contracting  parties  must 
have  had  in  view  property ,  which  it  would  be  the  duty  of  the  public 
ships  of  the  United  States  to  rescue  from  its  unlawful  possessors.  Be¬ 
cause  if  it  is  taken  from  those  who  are  rightfully  in  possession,  the  cap¬ 
ture  would  be  wrongful,  and  it  would  be  our  duty  to  restore  it.  But  is 
it  a  duty  which  our  naval  officers  owe  to  a  nation  tolerating  the  slave- 
trade,  to  subdue  for  their  kidnappers  the  revolted  victims  of  their  cruel 
ty  1  Could  the  people  of  the  United  States,  consistently  with  their 
principles  as  a  nation,  have  ever  consented  to  a  treaty  stipulation  which 
would  impose  such  a  duty  on  our  naval  officers  1 — a  duty  which  would 
drive  every  citizen  of  a  free  State  from  the  service  of  his  country  % 
Has  our  Government,  which  has  been  so  cautious  as  not  to  oblige  itself 
to  surrender  the  most  atrocious  criminals,  who  have  sought  an  asylum 
in  the  United  States,  bound  itself  under  the  term  “  merchandise,”  to 
seize  and  surrender  fugitive  slaves  1 

The  subject  of  the  delivery  of  fugitives  was  under  consideration  be¬ 
fore  and  during  the  negotiation  of  the  Treaty  of  San  Lorenzo  ;  and  was 
purposely  omitted  in  the  Treaty.  Sec.  10  Waite’s  State  Papers,  151, 
433.  Our  Treaties  with  Tunis  and  Algiers  contain  similar  expressions, 
in  which  both  parties  stipulate  for  the  protection  of  the  property  of  the 
subjects  of  each  within  the  jurisdiction  of  the  other.  The  Algerine 
regarded  his  Spanish  captive  as  property  ;  but  was  it  ever  supposed 
that  if  an  Algerine  corsair  should  be  seized  by  the  captive  slaves  on  board 
of  her,  it  would  be  the  duty  of  our  naval  officers  or  our  Courts  of  Ad¬ 
miralty  to  re-capture  and  restore  them  1 

The  phraseology  of  the  entire  article  in  the  Treaty,  clearly  shows 
that  it  was  intended  to  apply  only  to  inanimate  things,  or  irrational  ani¬ 
mals  ;  such  as  are  universally  regarded  as  property.  It  is  “  merchan¬ 
dise  rescued  from  the  hands  of  pirates  and  robbers  on  the  high  seas1' 


•23 


that  is  to  be  restored.  There  is  no  provision  for  the  surrender  of  the 
■pirates  themselves.  And  the  reason  is,  because  the  article  has  reference 
only  to  those  who  are  “  hostes  humani  generis ,”  whom  it  is  lawful  for, 
and  the  duty  of  all  nations  to  capture  and  to  punish.  If  these  Africans 
were  “  pirates  ”  or  sea  robbers,  whom  our  naval  officers  might  lawfully 
seize,  it  would  be  our  duty  to  detain  them  for  punishment ;  and  then 
what  would  become  of  the  “  merchandize  I” 

But  they  were  not  pirates,  nor  in  any  sense  hostes  humani  generis. 
Cinque,  the  master-spirit  who  guided  them,  had  a  single  object  in  view. 
That  object  was  —  not  piracy  or  robbery — but  the  deliverance  of  him¬ 
self  and  his  companions  in  suffering,  from  unlawful  bondage.  They 
owed  no  allegiance  to  Spain.  They  were  on  board  of  the  Amistad  by 
constraint.  Their  object  was  io  free  themselves  from  the  fetters  that 
bound  them,  in  order  that  they  might  return  to  their  kindred  and  their 
home.  In  so  doing  they  were  guilty  of  no  crime,  for  which  they  could 
be  held  responsible  as  pirates.  See  Bee’s  Hep.  273.  Suppose  they  had 
been  impressed  American  seamen,  who  had  regained  their  liberty  in  a 
similar  manner,  would  they  in  that  case  have  been  deemed  guilty  of 
piracy  and  murder  1  Not  in  the  opinion  of  Chief  Justice  Marshall. 
In  his  celebrated  speech  in  justification  of  the  surrender  by  President 
Adams  of  Nash  under  the  British  Treaty,  he  says  :  “  Had  Thomas  Nash 
been  an  impressed  American,  the  homicide  on  board  the  Hermoine 
would  most  certainly  not  have  been  murder.  The  act  of  impressing 
an  American  is  an  act  of  lawless  violence.  The  confinement  on  board 
a  vessel  is  a  continuation  of  that  violence,  and  an  additional  outrage. 
Death  committed  within  the  United  States  in  resisting  such  violence 
would  not  have  been  murder.”  Bee’s  Rep.  290. 

The  United  States,  as  a  nation ,  is  to  be  regarded  as  a  free  State. 
And  all  men  being  presumptively  free,  when  “  merchandise  ”  is  spok¬ 
en  of  in  the  Treaty  of  a  free  State,  it  cannot  be  presumed  that  human 
beings  are  intended  to  be  included  as  such.  Hence,  whenever  our 
Government  have  intended  to  speak  of  negroes  as  property  in  their 
Treaties,  they  have  been  specifically  mentioned,  as  in  the  Treaties  with 
Great  Britain  of  1783  and  1814.  It  was  on  the  same  principle  that 
Judge  Drayton,  of  South  Carolina,  decided  in  the  case  of  Almeida,  who 
had  captured  during  the  last  war  an  English  vessel  with  slaves,  that  the 
word  “  property  ”  in  the  prize  act,  did  not  include  negroes,  and  that 
they  must  be  regarded  as  prisoners  of  war,  and  not  sold  or  distributed 
as  merchandise.  5  Hall’s  Law  Journal,  459. 

And  it  was  for  the  same  reason  that  it  was  deemed  necessary  in  the 


24 


Constitution,  to  insert  an  express  stipulation  in  regard  to  fugitives  from 
service.  The  law  of  comity  would  have  obliged  each  State  to  protect 
and  restore  property  belonging  to  a  citizen  of  another,  without  such  a 
stipulation  ;  but  it  would  not  have  required  the  restoration  of  fugitive 
slaves  from  a  sister  State,  unless  they  had  been  expressly  mentioned. 

In  the  interpretation  of  Treaties  we  ought  always  to  give  such  a 
construction  to  the  words  as  is  most  consistent  with  the  customary  use  of 
language  ;  —  most  suitable  to  the  subject,  and  to  the  legitimate  powers 
of  the  contracting  parties ;  —  most  conformable  to  the  declared  princi¬ 
ples  of  the  Government ;  —  such  a  construction  as  will  not  lead  to  in. 
justice  to  others,  or  in  any  way  violate  the  laws  of  nature. 

These  are  in  substance  the  rules  of  interpretation  as  given  by  Vattel, 
R.  II.  ch.  17.  The  construction  claimed  in  behalf  of  the  Spanish  libel¬ 
lants,  in  the  present  case,  is  at  war  with  them  all. 

It  would  be  singular,  indeed,  if  the  tribunals  of  a  Government  which 
has  declared  the  slave-trade,  piracy ,  and  has  bound  itself  by  a  solemn 
Treaty  with  Great  Britain,  in  1814,  to  make  continued  efforts  “to  pro¬ 
mote  its  entire  abolition,  as  a  traffic  irreconcilable  with  the  principles 
of  humanity  and  justice,”  should  construe  the  general  expressions  of  a 
Treaty  which  since  that  period  has  been  revised  by  the  contracting  par¬ 
ties,  as  obliging  this  nation  to  commit  the  injustice  of  treating  as  pro¬ 
perty  the  recent  victims  of  this  horrid  traffic  ;  more  especially  when  it 
is  borne  in  mind,  that  the  Government  of  Spain,  anterior  to  the 
revision  of  the  Treaty  in  1819,  had  formally  notified  our  Government 
that  Africans  were  no  longer  the  legitimate  objects  of  trade  ;  with  a 
declaration  that  “  His  Majesty  felt  confident  that  a  measure  so  com¬ 
pletely  in  harmony  with  the  sentiments  of  this  Government ,  and  all  of  the 
inhabitants  of  this  Republic,  could  not  fail  to  be  equally  agreeable  to 
the  President.”  Doc.  48.  2  Ses.  16  Cong.  p.  8. 

Would  the  people  of  the  United  States  in  1819,  have  assented  to 
such  a  Treaty!  Would  it  not  have  furnished  just  ground  of  com¬ 
plaint  by  Great  Britain,  as  a  violation  of  the  10th  article  of  the  Treaty 
of  Ghent  \ 

But  even  if  the  Treaty  in  its  terms  were  such  as  to  oblige  us  to  vio¬ 
late  towards  strangers  the  immutable  laws  of  Justice,  it  would,  ac¬ 
cording  to  Vattel,  impose  no  obligation.  Vattel  c.  1,  §  9  ;  B.  II.  c  12 
§  161 5  c.  17,  §  311. 

The  law  of  nature  and  the  law  of  nations,  bind  us  as  effectually  to 
render  justice  to  the  African,  as  the  Treaty  can  to  the  Spaniard.  Be¬ 
fore  a  foreign  tribunal,  the  parties  litigating  the  question  of  freedom  or 


slavery,  stand  on  equal  ground.  And  in  a  case  like  this,  where  it  is 
admitted  that  the  Africans  were  recently  imported,  and  consequently 
never  domiciled  in  Cuba,  and  owe  no  allegiance  to  its  laws,  their  rights 
are  to  be  determined  by  that  law  which  is  of  universal  obligation, — the 
law  of  Nature. 

If,  indeed,  the  vessel  in  which  they  sailed  had  been  driven  upon  our 
coast  by  stress  of  weather  or  other  unavoidable  cause,  and  they  had  ar¬ 
rived  here  in  the  actual  possession  of  their  alledged  owners,  and  had 
been  slaves  by  the  law  of  the  country  from  which  they  sailed,  and 
where  they  were  domiciled,  it  would  have  been  a  very  different  ques- 
tion,  whether  the  Courts  of  the  United  States  could  interfere  to  liberate 
them,  as  was  done  at  Bermuda  by  the  Colonial  tribunal  in  the  case  of 
the  Enterprize. 

But  in  this  case  there  has  been  no  possession  of  these  Africans  by 
their  claimants  within  our  jurisdiction,  of  which  they  have  been  depriv¬ 
ed,  by  the  act  of  our  Government  or  its  officers  ;  and  neither  by  the 
law  of  comity,  or  by  force  of  the  Treaty,  are  the  officers  or  Courts  of 
the  United  States  required,  or  by  the  principles  of  our  Government 
permitted  to  become  actors  in  reducing  them  to  slavery. 

These  preliminary  questions  have  been  made  on  account  of  the  im¬ 
portant  principles  involved  in  them,  and  not  from  any  unwillingness  to 
meet  the  question  between  the  Africans  and  their  claimants  upon  the 
facts  in  evidence,  and  on  those  alone,  to  vindicate  their  claims  to  freedom. 

Suppose  then,  the  case  to  be  properly  here : — and  that  Ruiz  and 
Montez,  unprejudiced  by  the  decree  of  the  Court  below,  were  at 
liberty  to  take  issue  with  the  Africans  upon  their  answer,  and  to  call 
upon  this  court  to  determine  the  question  of  liberty  or  property,  how 
stands  the  case  on  the  evidence  before  the  Court  1 

The  Africans,  when  found  by  Lieutenant  Gedney,  were  in  a  free 
State,  where  all  men  are  presumed  to  be  free,  and  were  in  the  actual 
condition  of  freemen.  The  burthen  of  proof,  therefore,  rests  on  those 
who  assert  them  to  be  slaves.  10  Wheaton,  66  ;  2  Mason,  459. 
When  they  call  on  the  Courts  of  the  United  States  to  reduce  to 
slavery  men  who  are  apparently  free,  they  must  show  some  law,  having 
force  in  the  place  where  they  were  taken,  which  makes  them  slaves  ; 
or  that  the  claimants  are  entitled  in  our  courts  to  have  some  foreign 
law, — obligatory  on  the  Africans  as  well  as  on  the  claimants, — enforced 
in  respect  to  them ;  and  that  by  such  foreign  law  they  are  slaves. 

It  is  not  pretended  that  there  was  anv  law  existing  in  the  place 
4 


26 


where  they  were  found,  which  made  them  slaves,  but  it  is  claimed  that 
by  the  laws  of  Cuba  they  were  slaves  to  Ruiz  and  Montez,  and  that 
those  laws  are  to  be  here  enforced.  But  before  the  laws  of  Cuba,  if 
any  such  there  be,  can  be  applied  to  affect  the  personal  status  of  indi¬ 
viduals  within  a  foreign  jurisdiction,  it  is  very  clear  that  it  must  be 
shown  that  they  were  domiciled  in  Cuba. 

It  is  admitted  and  proved  in  this  case  that  these  negroes  are  natives 
of  Africa ,  and  recently  imported  into  Cuba.  Their  domicil  of  origin 
is  consequently  the  place  of  their  birth  in  Africa.  And  the  presump¬ 
tion  of  law  is,  always,  that  the  domicil  of  origin,  is  retained  until  the 
change  is  proved.  1  Burge’s  Conflict.  34.  The  burthen  of  proving 
the  change  is  cast  on  him  who  alledges  it.  5  Vesey,  787. 

The  domicil  of  origin  prevails  until  the  party  has  not  only  acquired 
another,  but  has  manifested  and  carried  into  execution,  an  intention  of 
abandoning  his  former  domicil,  and  acquiring  another,  as  his  sole 
domicil.  As  it  is  the  will,  or  intention  of  the  party  which  alone 
determines  what  is  the  real  place  of  domicil,  which  he  has  chosen, 
it  follows  that  a  former  domicil  is  not  abandoned  by  residence  in  another, 
if  that  residence  be  not  voluntarily  chosen.  Those  who  are  in  exile, 
or  in  prison,  as  they  are  never  presumed  to  have  abandoned  all  hope 
of  return,  retain  their  former  domicil.  1  Burg.  46.  That  these  vic¬ 
tims  of  fraud  and  piracy, — husbands  torn  from  their  wives  and  families, 
— children  from  their  parents  and  kindred, — neither  intended  to  aban¬ 
don  the  land  of  their  nativity,  nor  had  lost  all  hope  of  recovering  it, 
sufficiently  appears  from  the  facts  on  this  record.  It  cannot  surely  be 
claimed  that  a  residence  under  such  circumstances,  of  these  helpless  be¬ 
ings  for  ten  days  in  a  slave  barracoon  before  they  were  transferred  to 
the  Amistad,  changed  their  native  domicil  for  that  of  Cuba. 

It  is  not  only  incumbent  on  the  claimants  to  prove  that  the  Africans 
are  domiciled  in  Cuba,  and  subject  to  its  laws,  but  they  must  show  that 
some  law  existed  there  by  which  “  recently  imported  Africans”  can  be 
lawfully  held  in  slavery.  Such  a  law  is  not  to  be  presumed,  but  the 
contrary.  Comity  would  seem  to  require  of  us  to  presume  that  a  traffic 
so  abhorrent  to  the  feelings  of  the  whole  civilized  world  is  not  lawful 
in  Cuba.  These  respondents  having  been  born  free,  and  having  been 
recently  imported  into  Cuba,  have  a  right  to  be  everywhere  regarded 
as  free,  until  some  law  obligatory  on  them  is  produced  authorizing  their 
enslavement.  Neither  the  law  of  nature,  nor  the  law  of  nations 
authorizes  the  slave-trade,  although  it  was  holden  in  the  case  of  the 
Antelope  that  the  law  of  nations  did  not  at  that  time,  actually  'prohibit 


it  If  they  are  slaves  then,  it  must  be  by  reason  of  some  positive 
law  of  Spain  existing  at  the  time  of  their  recent  importation.  No  such 
law  is  exhibited.  On  the  contrary  it  is  proVed  by  the  deposition  of 
Dr.  Madden,  one  of  the  British  commissioners  resident  at  Havana,  that 
since  the  year  1820  there  has  been  no  such  law  in  force  there  either 
statute  or  common  law. 

But  we  do  not  rest  the  case  here.  W e  are  willing  to  assume  the 
burthen  of  proof.  On  the  14th  of  May,  1818,  the  Spanish  Government 
by  their  minister  announced  to  the  Government  of  the  United  States 
that  the  slave  trade  was  prohibited  by  Spain  ;  and  by  express  command 
of  the  King  of  Spain,  Don  Onis  communicated  to  the  President  of  the 
United  States  the  Treaty  with  Great  Britain  of  September  23d,  1817, 
by  which  the  King  of  Spain,  moved  partly  by  motives  of  humanity, 
and  partly  in  consideration  of  400,000  pounds  sterling,  paid  to  him  by 
the  British  Government  for  the  accomplishment  of  so  desirable  an 
object,  engaged  that  the  slave  trade  should  be  abolished  throughout  the 
dominions  of  Spain,  on  the  30th  of  May,  1820.  By  the  ordinance  of 
the  King  of  Spain  of  December,  1817,  it  is  directed  that  every  African 
imported  into  any  of  the  colonies  of  Spain  in  violation  of  the  treaty, 
shall  be  declared  free  in  the  first  port  at  which  he  shall  arrive. 

By  .  the  treaty  between  Great  Britain  and  Spain  of  the  28th  of  June, 
1835,  which  is  declared  to  be  made  for  the  purpose  of  “  rendering  the 
means  taken  for  abolishing  the  inhuman  traffic  in  slaves  more  effective,” 
and  to  be  in  the  spirit  of  the  treaty  contracted  between  both  powers  on 
the  23d  of  September,  1817,  “the  slave  trade  is  again  declared  on  the 
part  of  Spain  to  be  henceforward  totally  and  finally  abolished,  in  all 
parts  of  the  world.”  And  by  the  royal  ordinance  of  November  2d, 
1838,  the  Governor  and  the  naval  officers  having  command  on  the 
coast  of  Cuba,  are  stimulated  to  greater  vigilance  to  suppress  it. 

Such  then  being  the  laws  in  force  in  all  the  dominions  of  Spain,  and 
such  the  conceded  facts  in  regard  to  the  nativity  and  recent  importation 
of  these  Africans,  upon  what  plausible  ground  can  it  be  claimed  by  the 
Government  of  the  United  States,  that  they  were  slaves  in  the  island  of 
Cuba,  and  are  here  to  be  treated  as  property,  and  not  as  human 
beings  % 

The  only  evidence  exhibited  to  prove  them  slaves  are  the  papers  of 
the  Jlmistad ,  giving  to  Jose  Ruiz  permission  to  transport  49  Ladinos 
belonging  to  him  from  Havana  to  Puerto  Principe  ;  and  a  like  permit 
to  Pedro  Montez  to  transport  three  Ladinos.  For  one  of  the  four 
Africans,  claimed  by  Montez  (the  boy  Ka-le)  there  is  no  permit  at  all. 


28 


I 


These  permits  or  passports  are  in  the  printed  custom-house  forms, 
which  are  evidently  prepared  for  the  purpose  of  giving  a  particular 
description  of  the  individuals  for  whom  they  are  intended.  But  in 
both,  the  column  left  for  that  purpose,  remains  a  blank.  Neither  of 
them  contains  any  description  of  the  individuals,  except  that  they  are 
called  by  certain  Spanish  names,  to  which  it  appears  by  the  marshal’s 
return,  these  Africans  do  not  answer,  and  by  which  they  have  never 
been  known. 

The  papers  therefore  do  not  make  a  prima  facie  case  against  them. 
They  are  neither  individually  identified,  nor  do  they  collectively  an¬ 
swer  the  description  of  the  persons  whom  Ruiz  and  Montez  were 
authorized  to  transport. 

The  permits  were  for  Ladinos, — a  term  exclusively  applied  to  Afri¬ 
cans  long  resident  in  the  island, — acclimated,  and  familiar  with  the 
language  of  the  country.  As  the  African  slave  trade  has  been  prohibited 
since  1820,  it  is  legally  applicable  only  to  Africans  who  were  imported 
prior  to  that  time,  and  according  to  the  deposition  of  Dr.  Madden,  it  is 
so  customarily  used,  and  understood  in  Havana. 

But  the  Africans  of  the  Amistad  are  bozals ,  and  not  Ladinos: — a  fact 
which  is  not  only  proved  by  the  testimony  of  the  witnesses,  but  is  dis¬ 
tinctly  admitted  on  the  record,  in  the  admission  “  that  they  are  natives 
of  Africa  and  recently  imported  into  Cuba.” 

Such  papers,  given  on  the  simple  application  of  the  party  requesting 
them,  and  payment  of  the  customary  fees — (see  the  deposition  of  Dr. 
Madden) — given  without  any  notice  to,  or  hearing  of  the  Africans  who 
are  claimed  to  be  affected  by  them,  could  never  be  conclusive  upon  the 
rights  of  strangers,  even  if  no  fraud  was  proved,  and  they  were  actually 
described  in  the  permits.  See  9  Cranch.  126,  142 ;  1  Peters,  C.  C. 
Rep.  74.  Indeed  such  papers  are  never  regarded  by  foreign  tribunals 
as  conclusive  upon  anybody.  1  Rob.  Adm.  212 ;  6  Wheat.  1;  the 
Isabella. 

The  claim  that  they  are  so,  in  the  present  case,  is  preposterous,  and 
discreditable  to  the  Government  of  Spain,  by  whose  minister  it  is  urged. 

These  Africans  were  not  only  “  recently  imported,”  but  Ruiz  and 
Montez  knew  it,  when  they  obtained  their  permits  for  Ladinos.  When 
Ruiz  was  inquired  of,  in  New  London,  whether  the  negroes  could  speak 
Spanish  1  he  replied:  “No.  They  are  just  from  Africa.”  And  the 
same  fact  must  have  been  equally  well  known  to  Montez  in  regard  to 
the  four  little  children  claimed  by  him. 

The  inference  then  is  irresistible,  either  that  they  concealed  the  fact, 


‘29 


fraudulently,  from  the  custom-house  officer  who  granted  the  permits,  and 
falsely  represented  the  negroes  whom  they  intended  to  ship,  to  be  Ladi- 
nos ;  or  that  the  custom-house  officer,  knowing  the  truth,  gave  them  a 
false  certificate,  and  was  himself  a  party  to  the  fraud.  Which  alterna¬ 
tive  does  comity  to  Spain  require  us  to  adopt  1 

To  entitle  even  a  foreign  judgment  to  respect  as  prima  facie  evidence 
of  a  right,  it  is  indispensable  to  establish  “  that  the  Court  pronouncing  it 
had  a  lawful  jurisdiction  over  the  cause  and  the  parties.  If  its  jurisdic¬ 
tion  fails  as  to  either,  it  is  treated  as  a  nullity,  having  no  obligation,  and 
entitled  to  no  respect,  beyond  the  domestic  tribunals.  Story’s  Confl. 

§  539,  546.  And  fraud  will  vitiate  any  judgment,  however  well  found¬ 
ed  in  point  of  jurisdiction.  See  15  Johns.  145  ;  3  Coke,  77. 

In  regard  to  judgments  in  personam ,  it  is  holden  by  the  most  ap¬ 
proved  writers  on  public  law  “  that  no  sovereign  is  bound  by  the  jure 
gentium ,  to  execute  a  foreign  judgment  within  his  dominions.  He  is 
at  liberty  to  examine  into  the  merits  of  the  judgment,  and  refuse  to  give 
effect  to  it,  if,  upon  such  examination,  it  should  appear  to  be  unjust  or 
unfounded.”  Story’s  Confl.  500.  The  jurisdiction  of  the  Court  may 
be  inquired  into,  and  its  power  over  the  parties  and  things :  and  the 
judgment  may  be  impeached  for  fraud.  Ib. 

Against  a  stranger,  not  domiciled  in  the  country  where  such  judgment 
is  rendered,  it  is  never  held  to  be  conclusive  when  attempted  to  be  ex¬ 
ecuted  abroad.  1  Boull.  606  ;  Story’s  Confl.  ub.  sup. 

But  in  this  case  there  has  been  no  proceeding  against  these  Africans 
in  Havana ;  no  judgment,  or  any  process  against  them  by  which  they 
were  declared  to  be  slaves ;  no  investigation  of  any  facts  whatever  in 
regard  to  them,  to  which  they  can  be  deemed  to  have  been,  in  any 
sense,  parties.  Indeed  the  permits  given  to  Ruiz  and  Montez  were  not 
in  fact  given  for  any  such  purpose  as  that  for  which  they  are  attempted 
to  be  used.  They  were  given  for  Ladinos;  whom  alone, — of  native 
Africans, — it  was  lawful  to  hold  or  transport  as  slaves.  They  were  ob¬ 
tained  without  a  description  of  individuals,  for  the  fraudulent  purpose  of 
using  them  to  cover  bozals ,  or  newly  imported  Africans,  which  these 
are  conceded  to  be.  The  permits  would  answer  for  any  other  equal 
number  of  Africans,  just  as  well  as  for  these. 

The  object  of  the  deceit  practised  by  Ruiz  and  Montez  is  apparent 
from  the  deposition  of  Dr.  Madden.  To  effect  that  object  a  double 
fraud  became  necessary.  The  custom-house  permits  were  obtained  by 
representing  the  Africans  as  Ladinos ;  while  to  avoid  the  danger  of 
British  cruisers,  by  whom  they  would  at  once  be  recognized  as  bozals. 


they  were  entered  in  the  license  of  the  schooner,  by  the  commandancia 
of  the  port,  as  “  passengers  for  the  Government.” 

It  has  been  said  in  an  official  opinion  by  the  late  Attorney-General, 
(Mr.  Grundy),  that  “  as  this  vessel  cleared  out  from  one  Spanish  port 
to  another  Spanish  port,  with  papers  regularly  authenticated  by  the 
proper  officers  at  Havana,  evidencing  that  these  negroes  were  slaves^ 
and  that  the  destination  of  the  vessel  was  to  another  Spanish  port,  the 
Government  of  the  United  States  would  not  be  authorized  to  go  into  an 
investigation  for  the  purpose  of  ascertaining  whether  the  facts  stated  in 
those  papers  by  the  Spanish  officers  are  true  or  not;” — “that  if  it 
were  to  permit  itself  to  go  behind  the  papers  of  the  schooner  Amistad. 
it  would  place  itself  in  the  embarrassing  condition  of  judging  upon 
Spanish  laws,  their  force,  effect,  and  application  to  the  case  under  con¬ 
sideration.”  In  support  of  this  opinion  a  reference  is  made  to  the 
opinion  of  this  Court  in  the  case  of  Arredondo,  6  Pet.  729,  where  it  is 
stated  to  be  “  an  universal  principle  that  where  power  or  jurisdiction  is 
delegated  to  any  public  officer  or  tribunal  over  a  subject  matter ,  and  its 
exercise  is  confided  to  his  or  their  discretion,  the  acts  so  done  are  bind¬ 
ing  and  valid  as  to  the  subject  matter ;  and  individual  rights  will  not  be 
disturbed  collaterally  for  any  thing  done  in  the  exercise  of  that  discre¬ 
tion  within  the  authority  conferred.  The  only  questions  which  can 
arise  between  an  individual  claiming  a  right  under  the  acts  done,  and 
the  public,  or  any  person  denying  its  validity,  are  power  in  the  officer, 
and  fraud  in  the  party. ” 

The  principle  thus  stated  was  applicable  to  the  case  then  before  the 
Court,  which  related  to  the  validity  of  a  grant  made  by  a  public  officer  ; 
but  it  does  not  tend  to  support  the  position  for  which  it  is  cited  in  the 
present  case.  For  in  the  first  place  there  was  no  jurisdiction  over 
these  newly  imported  Africans,  by  the  laws  of  Spain,  to  make  them 
slaves,  any  more  than  if  they  had  been  white  men.  The  ordinance  of 
the  king  declared  them  free  :  Secondly,  there  was  no  intentional  exer¬ 
cise  of  jurisdiction  over  them  for  such  a  purpose  by  the  officer  who 
granted  the  permits ;  and  3dly,  the  permits  were  fraudulently  obtained, 
and  fraudulently  used  by  the  parties  claiming  to  take  benefit  of  them. 
For  the  purposes  for  which  they  are  attempted  to  be  applied,  the  per¬ 
mits  are  as  inoperative  as  would  be  a  grant  from  a  public  officer,  fraudu¬ 
lently  obtained,  where  the  State  had  no  title  to  the  thing  granted,  and 
the  officer  no  authority  to  issue  the  grant.  See  6  Pet.  R.  730;  5 
Wheat.  303. 

But  it  is  said,  we  have  no  right  to  place  ourselves  in  the  position  of 


31 


judging  upon  the  Spanish  laws.  How  can  our  Courts  do  otherwise, 
when  Spanish  subjects  call  upon  them  to  enforce  rights  which,  if  they 
exist  at  all,  must  exist  by  force  of  Spanish  laws'?  For  what  pur¬ 
pose  did  the  Government  of  Spain  communicate  to  the  Government  of 
the  United  States,  the  fact  of  the  prohibition  of  the  slave  trade,  unless  it 
was  that  it  might  be  known  and  acted  upon  by  our  Courts  1  Suppose 
the  permits  to  Ruiz  and  Montez  had  been  granted  for  the  express  pur¬ 
pose  of  consigning  to  perpetual  slavery  these  recent  victims  of  this  pro¬ 
hibited  trade,  could  the  Government  of  Spain  now  ask  the  Government 
or  the  Courts  of  the  United  States  to  give  validity  to  the  acts  of  a 
colonial  officer,  in  direct  violation  of  that  prohibition ;  and  thus  make 
us  aiders  and  abettors  in  what  we  know  to  be  an  atrocious  wrong  1 
It  may  be  admitted  that,  even  after  such  an  annunciation,  our  cruisers 
could  not  lawfully  seize  a  Spanish  slaver,  cleared  out  as  such,  by  the 
Governor  of  Cuba:  but  if  the  Africans  on  board  of  her  could  effect 
their  own  deliverance,  and  reach  our  shores,  has  not  the  Government  of 
Spain  authorized  us  to  treat  them  with  hospitality  as  freemen  %  Could 
the  Spanish  minister,  without  offence,  ask  the  Government  of  the  United 
States  to  seize  these  victims  of  fraud  and  felony,  and  treat  them  as  pro¬ 
perty,  because  a  colonial  governor  had  thought  proper  to  violate  the 
ordinance  of  his  king,  in  granting  a  permit  to  a  slaver  1 

But  in  this  case  we  make  no  charge  upon  the  Governor  of  Cuba.  A 
fraud  upon  him  is  proved  to  have  been  practised  by  Ruiz  and  Montez. 
He  never  undertook  to  assume  jurisdiction  over  these  Africans  as  slaves, 
or  to  decide  any  question  in  regard  to  them.  He  simply  issued,  on  the 
application  of  Ruiz  and  Montez,  passports  for  Ladino  slaves  from  Ha¬ 
vana  to  Puerto  Principe.  When  under  color  of  those  passports,  they 
fraudulently  put  on  board  the  Amistad,  bozals ,  who,  by  the  laws  of 
Spain,  could  not  be  slaves,  we  surely  manifest  no  disrespect  to  the  acts 
of  the  Governor,  by  giving  efficacy  to  the  laws  of  Spain,  and  denying  to 
Ruiz  and  Montez  the  benefit  of  their  fraud.  The  custom-house  license, 
to  which  the  name  of  Espeleta  in  print  was  appended,  was  not  a  docu¬ 
ment  given  or  intended  to  be  used  as  evidence  of  property  between 
Ruiz  and  Montez  and  the  Africans ;  any  more  than  a  permit  from  our 
custom-house  would  be  to  settle  conflicting  claims  of  ownership  to  the 
articles  contained  in  the  manifest.  As  between  the  government  and  the 
shippers,  it  would  be  evidence  if  the  negroes  described  in  the  passport 
were  actually  put  on  board,  and  were  in  truth  the  property  of  Ruiz  and 
Montez,  that  they  were  legally  shipped  : — that  the  custom-house  forms 
had  been  complied  with  ;  and  nothing  more.  But  in  view  of  the  facts 


as  they  appear,  and  are  admitted  in  the  present  case,  the  passports  seem 
to  have  been  obtained  by  Ruiz  and  Montez,  only  as  a  part  of  the  neces¬ 
sary  machinery  for  the  completion  of  a  slave  voyage.  The  evidence 
tends  strongly  to  prove  that  Ruiz  at  least,  was  concerned  in  the  importa¬ 
tion  of  these  Africans,  and  that  the  re-shipment  of  them  under  color  of 
passports  obtained  for  Ladinos,  as  the  property  of  Ruiz  and  Montez,  in 
connection  with  the  false  representation  on  the  papers  of  the  schooner, 
that  they  were  “passengers  for  the  Government ,”  was  an  artifice  re¬ 
sorted  to  by  these  slave-traders  for  the  double  purpose  of  evading  the 
scrutiny  of  British  cruisers,  and  legalizing  the  transfer  of  their  victims  to 
the  place  of  their  ultimate  destination.  It  is  a  remarkable  circumstance, 
that  though  more  than  a  year  has  elapsed,  since  the  decree  of  the  Dis¬ 
trict  Court,  denying  the  title  of  Ruiz  and  Montez,  and  pronouncing  the 
Africans  free,  not  a  particle  of  evidence  has  since  been  produced  in  sup¬ 
port  of  their  claims.  And  yet, — strange  as  it  may  seem, — during  all 
this  time,  not  only  the  sympathies  of  the  Spanish  minister,  but  the  pow¬ 
erful  aid  of  our  own  Government  have  been  enlisted  in  their  behalf! 

The  time  admonishes  me  that  the  usual  hour  of  adjournment  has  ar¬ 
rived,  and  that  I  have,  perhaps,  already  occupied  too  long  the  attention 
of  the  Coart.  But  the  destiny  of  thirty-six  human  beings  depends  upon 
the  decision';  and  the  peculiar  circumstances  of  their  case,  and  the 
questions  of  power,  which  are  involved  in  it,  have  excited  an  intense 
interest  throughout  the  country $ — I  may  almost  say  throughout  the 
civilized  world.  My  own  personal  feelings  too,  as  well  as  those  of  the 
community  from  which  I  come,  are  deeply  interested  in  the  result.  It 
is  because  of  the  magnitude  of  the  principles  involved  in  this  discus¬ 
sion,  and  the  extraordinary  claims  and  proceedings  of  the  Executive  de¬ 
partment,  as  well  as  of  the  consequences  of  the  decision  of  this  high 
tribunal,  not  only  to  the  individuals  immediately  concerned,  but  on 
the  character  of  our  Government  for  sincerity  and  consistency  in  the 
great  principles  on  which  it  professes  to  be  based,  that  I  have  felt  my¬ 
self  at  liberty  to  make  larger  demands  on  the  patience  of  the  Court, 
than  I  should  otherwise  have  deemed  proper.  And  it  is  to  the  same 
considerations  we  owe  it,  that  the  illustrious  citizen  with  whom  I  have 
the  honor  to  be  associated  on  this  occasion, — after  enjoying  the  highest 
honors  that  this  or  any  other  country  can  bestow,  deems  it  a  still  higher 
object  of  his  ambition,  to  appear  before  this  tribunal  to  plead  the  cause 
of  helpless  strangers  who  have  been  thrown  by  Providence  upon  the 
hospitality  of  this  nation,  and,  at  the  same  time  in  the  name,  and  I  trust 
as  the  representative  of  the  American  people,  to  vindicate  the  honor 

OF  OUR  COUNTRY  AND  THE  CLAIMS  OF  HUMANITY  AND  JUSTICE. 

f?  /  - - - 


I 


Gaylord  Bros, 
Makers 

Syracuse  N  Y 
PAT.  JAN.  21 , 1908 


